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In re Condemnation by Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

August 16, 2013

In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-of-Way for State Route 0079, Section A23 R/W, a Limited Access Highway in the Townships of Collier and Robinson
v.
Commonwealth of Pennsylvania, Department of Transportation The Church of Grace and Glory Appeal of: The Church of Grace and Glory

Argued: April 16, 2013

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

P. KEVIN BROBSON, Judge

Appellant The Church of Grace and Glory (Church) appeals from the July 25, 2012 order of the Court of Common Pleas of Allegheny County (trial court), which sustained Appellee/condemnor Department of Transportation's (DOT) preliminary objections to the Church's petition for appointment of a board of viewers. For the reasons set forth below, we affirm the trial court's order.

On May 1, 2006, DOT filed with the trial court a declaration of taking under what is now the former Eminent Domain Code (former Code), [1] docketed at GD-06-10196. (Reproduced Record (R.R.) at 6a-17a.) The declaration of taking sought to condemn "all right, title, and interest in and to [subsurface coal]" of a property located in the Townships of Collier and Robinson. (R.R. at 9a.) In its declaration, DOT alleged that, despite a diligent search, it was unable to identify or otherwise determine the owner(s) of the subsurface coal at the property. (R.R. at 12a.) The record indicates that DOT also filed with the trial court a declaration of taking, docketed at GD 06-010194, condemning the surface property owned by the Church at the same location as the subsurface coal. (Id. at 134a-42a.) On May 10, 2006, DOT published, pursuant to former Section 405(b) of the Code, 26 P.S. § 1-405(b), a notice of the taking and estimated just compensation in the Pittsburgh Post-Gazette and the Pittsburgh Legal Journal.[2] (Id.) The notice read in pertinent part:

In the Court of Common Pleas of Allegheny County, Pennsylvania

D.B.-Volume 12829 Page 546
In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of the right-of-way for State Route 0079, Section A23 in the Township of Collier and the Township of Robinson.
No. 2006-13177 Term, 2006
Eminent Domain Proceeding in Rem Notice of Condemnation and Deposit of Estimated Just Compensation
Notice is hereby given that the Commonwealth of Pennsylvania, by the Secretary of Transportation . . . pursuant to the provisions of Section 2003(e) of the Administrative Code of 1929, P.L. 177, 71 P.S. [§] 513(e), as amended, has filed on May 1, 2006, a Declaration of Taking to the above term and number, condemning the property shown on the plans of the parcels listed on the Schedule of Property Condemned which have been recorded in the Recorder's Office of the above county at the places indicated on the said schedule. The name(s) of the owner(s) of the property interest(s) condemned is (are) also shown on the aforesaid Schedule. . . .
The purpose of the condemnation is to acquire property for transportation purposes.
Plans showing the property condemned from the parcels listed on the Schedule of Property Condemned have been recorded in the aforesaid Recorder's Office at the places indicated on the Schedule, where they are available for inspection. The Property Interest thereby condemned is designated on the Declaration of Taking heretofore filed. The Commonwealth of Pennsylvania is not required to post security, inasmuch as it has the power of taxation.
Because the Identity or the whereabouts of the condemnee(s) listed below is (are) unknown or for other reasons he (they) cannot be served, this notice is hereby published in accordance with Section 405(b) of the Eminent Domain Code of 1964 (26 P.S. [§] 1-405(b)). Claim No. 0200458000; Parcel No. 37; Name Unknown Owner; Address
Furthermore Notice is Given That the Commonwealth of Pennsylvania, Department of Transportation, pursuant to Section 522 of the Eminent Domain Code of 1964 (26 P.S. [ยง] 1-522), will, no less than twenty (20) day[s] subsequent to the expiration of the statutory period for the filing of preliminary objections to the Declaration of Taking, present a petition to the Court of Common Pleas of the above county to deposit into court the just compensation estimated by the Commonwealth to ...

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